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Chapter Five takes up the specific issue of the selection of judges, focusing special attention on a relatively new institution known as the judicial council. Judicial councils have spread around the world in recent decades, in part because they have been promoted as a best practice to enhance judicial independence. Councils play various functions: they can participate in the recruitment and selection of judges, in monitoring and discipline, and in promotions. We use analogies from corporate boards of directors to understand judicial councils, and also argue that they are likely to be unstable because demands for independence and accountability vary over time. We also conduct a multivariate statistical analysis. Despite many claims that judicial councils enhance judicial independence, we find that they do not. Instead, they are locations for contests of reputation among various audiences.

This chapter discusses the following: the case of Marbury v. Madison (1803) which has been cited as evidence that the Supreme Court has the authority to not only strike down the acts of Presidents, Congress, and the states but to do so permanently; independent presidential judgment; advisory opinions; nominating judges, recess appointments; FDR's court-packing; national security and judicial deference; and the state secrets privilege.

This introductory chapter begins with a brief discussion of the lack of transparency in the process by which judges are chosen for international courts. It then lays out the purpose of this book, which is to create a systematic empirical picture of the workings of the judicial appointments processes in the international courts. The research focuses on nomination and election practices across different countries for two of the leading international courts: the International Court of Justice (ICJ) and the International Criminal Court (ICC).

Chapter Five takes up the specific issue of the selection of judges, focusing special attention on a relatively new institution known as the judicial council. Judicial councils have spread around the world in recent decades, in part because they have been promoted as a best practice to enhance judicial independence. Councils play various functions: they can participate in the recruitment and selection of judges, in monitoring and discipline, and in promotions. We use analogies from corporate boards of directors to understand judicial councils, and also argue that they are likely to be unstable because demands for independence and accountability vary over time. We also conduct a multivariate statistical analysis. Despite many claims that judicial councils enhance judicial independence, we find that they do not. Instead, they are locations for contests of reputation among various audiences.

The logic of legal constitutionalism promotes the role of judges as external regulators of political behaviour. It therefore seeks to increase the degree of constitutional rigidity by seeking to locate some basic rights, values, or principles beyond the reach of elected politicians. New Labour sought to embrace elements of legal constitutionalism while maintaining a ‘political constitution’. The outcome is a confused and anomalous element of the broader bi‐constitutionality argument.

This chapter considers questions relating to the reform of the appointments process for the UK's top-level court. It argues that ‘the quality of the judges in the UK's top courts in terms of intellectual ability and integrity is probably higher now than at any time in the 20th century, yet the judicial appointments process is facing an unprecedented challenge to its legitimacy’. It examines a number of models, including election, parliamentary confirmation, and the possible roles of a judicial appointments commission in relation to the UK's highest court.

Laura Cahillane’s chapter aims is to consider the current procedure for judicial appointments and put forward some tentative suggestions for reform in an attempt to begin a debate on this area. Part II of the chapter examines problems with the existing system for judicial appointments, including their political nature, the lack of transparency in existing processes, the lack of diversity in existing appointments, and limitations inherent in the process. The chapter then considers several possible avenues for reform, including reducing the number of names which the appointments board can recommend, introducing an obligation to interview candidates, consider the possibility of ranking candidates, require the Government to publish reasons for its choice, involve opposition parties, reform membership of the appointments board, amend eligibility criteria and require the board to consider questions of diversity.

David Kenny’s chapter examines a recent proposals to eliminate politics from appointments with a system based on solely on ‘merit’. Merit, however, is an ‘empty vessels for substantive norms’ – it is filled with content that is invariably political. In Part II, the chapter argues that the composition of the judiciary in Ireland lacks diversity in terms of personal and educational background, and this compounds the homogeneity of judicial viewpoints, which inevitably shape our views on what the Constitution is for, and what the Constitution means, and therefore the diversity of our judiciary matters. In Part III, the chapter advance three suggestions in light of my conclusion that there are irreducible political considerations in judicial appointments: that we abandon the language of merit, along with any aspiration to nominate judges in a manner that expresses no political viewpoint about what judging should be; that, however we might reform judicial appointments to excise political patronage, we should not delegate this function from government to an independent body; and that we should increase the diversity of our judiciary, in terms of both professional and personal background. The way forward lies in admitting, rather than concealing, the politics at play in judicial appointments.

This essay is a comment on the robust defence of the collegium system as espoused in Justice Madan Lokur’s opinion in the NJAC Case. The author critically analyses how Justice Lokur employs constitutional history, instances of executive interference during the decades after Independence, and accounts of ‘unsuitable’ appointments made at the behest of the executive, to come up with a defence of the collegium. Justice Lokur’s specific issues with the National Judicial Appointments Commission based on which he holds the 99th Amendment to the Constitution and the NJAC Act, 2014 unconstitutional are taken up for consideration in the essay. At the same time, this essay highlights certain principled deficiencies of the collegium which might have not been considered adequately in the NJAC Case. The essay argues that the notion that the collegium upholds judicial independence does not mean that an alternative system of appointments would be likely to disturb it.

This essay comments on how the judgment in the National Judicial Appointments Commission Case is a befitting affirmation of judicial independence by the Supreme Court, against endemic executive interference in judicial appointments and transfers. This essay provides a conceptual understanding of judicial independence, against the backdrop of certain pivotal instances from India’s judicial history. The highlight of this essay is the author’s discussion of Union of India v. Sankalchand Himatlal Sheth ((1977) 4 SCC 193)—a judgment crucial for establishing the contours of judicial independence in the context of transfer of High Court judges. This essay gives this case the attention it merits by addressing the issue of judicial independence against its backdrop.

This essay analyses how Nepal has consciously made attempts to depoliticize judicial appointments—while appointments to the Supreme Court were originally made at the behest of the executive (the monarch), the fifth Constitution onwards (in 1990), appointments became the prerogative of the ‘Judicial Council’, a body chaired by the Chief Justice of Nepal. This essay describes how by the time Nepal enacted its Interim Constitution of 2006, judicial appointments involved all three branches of the government. This essay observes that the 2015 Constitution retains the Judicial Council and the Parliamentary Hearing Special Committee, and by necessary implication, the model of power-sharing between the three branches of government. Though still largely untested, this essay parts with the belief that the appointment procedures under this Constitution may lead to appropriate selections being made, though its complicated power-sharing devices might quite easily descend into gridlock.

The United Kingdom's statutory bill of rights, with its strong reading down provision, via s.3 of the UK Human Rights Act, as in Ghaidan v. Godin Mendoza, is tantamount to a ‘licence to rewrite legislation’. This makes UK judges just as powerful as they are under a United States style constitutionalized bill of rights, given the failure of UK governments to respond to radical reinterpretations and dispute declarations of incompatibility. All this is exacerbated by the undemocratic manner in which judges are now appointed in the UK. This chapter presents a pessimistic scenario for those who favour democratic decision-making, including decisions about the proper scope of rights, what to do when they conflict, and when limits are reasonable.

This chapter examines the complex relationship between judicial accountability and judicial independence. If judges are unaccountable to the public, they can become the people's rulers. Yet, if they are too accountable to the public they can exercise arbitrary power. The chapter describes mechanisms of achieving accountability through various methods of judicial appointment and removal. But, it argues, more important than those methods is the idea of ensuring judicial accountability by insisting that judges be accountable to the law. That notion, too, is complex. It includes some idea of responsibility to past law-makers, coupled with some idea of accountability to contemporary professionals who define for judges what it means to make decisions according to law.

This essay discusses United Kingdom’s transition to the commission model of judicial appointments, with the advent of the Constitutional Reform Act of 2005 (CRA). The essay expounds that the commission model in the UK provides for a sustained participation of ‘lay’ members, who are expected to be representatives of the civil society. The author aligns with the view that the fragmentation of the appointments process amongst various actors is an exercise towards appointing a more diverse judiciary, and in no way impinging upon judicial independence. This essay analyses how the Supreme Court of India in the NJAC Case interpreted the appointments process ushered in by the UK CRA. This essay critiques the Indian Supreme Court’s reading of the CRA, and how the Court’s conclusion that the appointments processes in the UK shows an increasing trend toward judicialization may either be incorrect, or highly reductionist.

This essay discusses the landmark developments pertaining to judicial appointments in the last decade in Pakistan—particularly, Pakistan’s experiment with the commission model of appointments with the 18th Constitution Amendment, 2010 establishing the Judicial Commission of Pakistan comprising members from across the judiciary, political executive, and the bar. In a challenge to its validity, the Supreme Court of Pakistan upheld the 18th Amendment in District Bar Association, Rawalpindi v. Federation of Pakistan (District Bar Association). This essay discusses the appointments process in Pakistan that existed prior to the 18th Amendment, followed by a close examination of the judgment in District Bar Association. It argues that even though the 18th Amendment, which ushered in the commission model in Pakistan, was upheld, by means of interpretation, what the Supreme Court has upheld is different from the process envisaged by this Amendment.

The cycle of polarization and depolarization affects the political supports for judicial review. When politics is depolarized, politicians tend to let judges handle basic constitutional questions so that politicians can fight over the spoils of everyday politics. Judicial review tends to enforce the values of national political elites, especially against state and local governments. When the country is polarized, however, elite consensus evaporates. Political elites disagree about everything, so judicial review cannot do the same work. Instead, judicial review allows polarized political elites to win victories they can no longer win in the political process. As legislative politics becomes mired in polarization, the judiciary becomes an ever more important venue for achieving policy victories. This increases the urgency and bitterness of partisan fights over judicial appointments. Strong polarization encourages the parties to engage in constitutional hardball to secure ideologically aligned judges and prevent the other party from appointing judges.

This essay examines the role that the executive, represented by the Union Minister in-charge of Law and Justice, was expected to play on the National Judicial Appointments Commission. The author charts a history of what the Constituent Assembly envisaged the role of the executive to be and how this role eventually unfolded in the appointments process. The description of the history culminates with the observation about how the collegium system of appointments, meant to counteract executive interference in appointments, has come to be mired in controversy itself. This essay then engages with the judgment in the NJAC Case, and how the bench frowned upon the presence of the Law Minister on the NJAC. This essay contests that the Supreme Court’s apprehension that the Law Minister could cloud the views of the other members of the NJAC was based on conjectures and surmises.

This essay takes a deep dive into the role of the civil society in the judicial appointments process. It begins with the observation that the superior courts in India, during the last few decades, have assumed an activist role. Public interest litigation on issues which have the potential to impact various sections of society are being entertained by the Supreme Court and the High Courts. This essay argues that India should not stay far behind from including members of the civil society, or ‘lay’ members in the judicial appointments process. It is also argued that the inclusion of lay people in the appointments process would positively impact the cause of diversity in appointments. In this context, this essay espouses the cause of civil society members in the judicial appointments process, and shields their inclusion in the National Judicial Appointments Commission from the allegation of violating the independence of the judiciary.